International Trade Agreements Before Domestic Courts: Lessons from the Brazilian Experience
35 Pages Posted: 11 Jun 2014
Date Written: June 10, 2014
The world economy has been undergoing massive changes and Latin American emerging economies have been increasingly engaging in the international trade dispute settlement systems. At the same time, Latin American domestic courts adopt the direct effect of WTO agreements whereby international trade rules may be invoked by private parties in domestic litigation. Contrastingly, major WTO members do not give direct effect to WTO law, including the United States, the European Union, Canada, and China. The core question that emerges from this scenario is therefore: what should be the proper role of domestic courts in relation to international trade law? In order to answer this question, this paper examines Brazilian courts’ decisions to assess how the direct effect of WTO rules may work in the real world, and its impact in the function and objective of international trade rules. Through a qualitative research, this article gathers leading cases rendered by Brazilian courts involving the WTO agreements, namely the GATT and the antidumping Agreement. This study then challenges the core assumptions of the dominant international legal scholarship that fosters the application of international law by domestic courts and argues that the function and objective of international trade agreements and the principle of popular sovereignty and democratic self-government recommend declining direct effect of the WTO agreements. It indicates that the findings of the Brazilian experience may also be valid to a certain extent to other Latin American countries, suggesting future research for Mexico and Argentina. This study aims to raise the awareness that the prevailing international legal scholarship advancing an increased role of domestic courts in the application and interpretation of international law should not be applied to international trade agreements, although this perspective continues to harvest followers in Latin America and elsewhere.
Keywords: direct effect, WTO, Brazil, domestic courts, judicial interpretation, international law
Suggested Citation: Suggested Citation